Mark Pestronk
Q: I have several questions about the incident at Chicago O'Hare, where a passenger was dragged off a United flight because he refused to surrender his seat for a crew member and wound up getting injured. Are airlines allowed to forcibly remove seated passengers? If so, could my agency be liable for failure to warn clients that this could happen to them? Could we be held liable for not giving the client a copy of the airline's contract of carriage?
A: Nothing in any federal or state statute or regulation authorizes an airline to remove anyone from any aircraft to accommodate deadheading (traveling for free) crew members. If the forcible removal was legal, it would have to have been authorized by the relevant contract of carriage, which binds the passenger regardless of whether he or she gets a copy of the contract or even a notice of its existence. U.S. DOT regulations require carriers to give passengers written notice about the existence of the contract of carriage, and the carriers typically do so when the GDS issues an e-ticket with a lot of fine print under the heading, "Notice of incorporated terms of contract."
In the Chicago incident, the transporting airline in question was actually not United but rather Republic Airlines doing business as United Express. Republic has no contract of carriage of its own on its website. Instead, it has a link to the United contract, which is 37,000 words long.
United's contract of carriage has no less than 26 grounds for removing passengers from aircraft, but not one of them states that a passenger can be removed to accommodate a deadheading crew member. The closest that United comes is the grounds called "Force majeure and other unforeseeable conditions." However, United has not cited any unforeseeable condition in this case.
This means that United breached its contract with the passenger, who can now sue for the breach. Because of the federal preemption rule, he may have trouble suing on other grounds that could lead to higher damages, such as intentional infliction of emotional distress or false imprisonment.
For the future, United could amend its contract to include the crew needs as a 27th ground for removal, in which case the passenger could not even sue for breach of contract. It is probably just as well that United did not have such grounds at the time of the incident. If it had, it might have suffered an even greater loss of goodwill.
Numerous articles and social media commentaries referred to the DOT's Denied Boarding Compensation regulations, which provide that involuntarily bumped passengers are entitled to collect up to $1,350. However, those rules apply only to "oversales," when too many people have confirmed reservations. In this case, there apparently was no oversale so United could not justify its actions by citing those rules. In any event, I don't think that the denied boarding rules allow removal from the aircraft as opposed to denial of boarding in the first place. Although United did allegedly ask for volunteers in return for money and only chose to remove the passenger after there were not enough volunteers, use of this procedure did not excuse United's breach of the contract.
For travel agencies, the issue you raise is whether you must give clients notice that a carrier might breach its contract of carriage by forcibly ejecting the client. My answer is no, as a travel agent's duty to warn does not apply to what a consumer already knows from the general media. You have no legal duty to provide clients with any notice of the existence of the contract of carriage. Under DOT rules, only carriers have that duty.